A Conversational Treatise on the Problems with Intellectual Property

I recently had an extended conversation on Facebook with one of my friends about the nature and problems of intellectual property. This wasn’t the intention of the post that started the comment thread—it was about Microsoft calling out Google for claiming MS bought the Novell patent portfolio to keep them out of Google’s hands after Google declined to participate in a joint bid with MS. I posted a comment about an alternative take on the story from Techdirt, which prompted the following conversation which took place over a the next few days. It ended up including quite a bit of detailed opinion about patents and copyrights, and it took enough collective effort that I wanted to post it for others to read and respond to as well. My friend’s identity is removed, though just for perspective, I will say that he is a photographer and makes at least some of his living off of his work. This influences his take on intellectual property, as I’m sure my vocation as a programmer and work on the Keyglove project does to my own position on it.

I don’t assert that I’m absolutely right, though I do feel that my points are argued well, and as of the time of this post, I wouldn’t change what I said. I may revisit this in a year and realize that my views have changed, or I may not. I welcome any further comments, positive or negative, as long as you take the time to read everything below before you respond so that you can get the whole picture. Challenges from others are the best way I know of to either cement or revise my own opinions through debate. (His posts are indented in block quotes, mine are in normal text.)

Patents are often painted in bad light, but being an innovator, do you not see the merit in them? If someone took your concept and capitalized on it without you seeing any revenue, wouldn’t you be pissed? I think some reform may be great, but I think this article distracts from Google’s two-faced whining. I don’t imagine them playing ball with everyone else had they acquired the patent portfolio.

Patents are, at their core, a government-granted right to control other people’s property, which I find very difficult to defend while believing in physical property rights at the same time. Yes, I would be disappointed if somebody capitalized on my concept without my seeing any revenue, IF I intended to capitalize on it first. But if I have an idea, and they actually implement it, then do I REALLY have a right to demand compensation just because I thought of it first? Patents say yes, even if they thought of it independently. I say no in either case.

Well, there’s a difference between patent-whoring, like what Lodsys was doing, but if you have an actual product, I don’t quite see a problem with capitalizing on it. The article is a bit deluded in its conclusion that IP does not increase wealth. Take Novell, for example. They sold off their patent portfolio and made money off a technology they developed (as is my understanding). If your project is successful, and you patent it, a company that knows how to improve it may want to buy you out – that increases wealth. When, on the other hand, a patent troll like Lodsys comes along, they need to be stripped of their ‘patents’ because they’re just philosophical in nature, not pragmatic. The actual utility needs to be considered in patents, and this is why I believe there should be reform, and not an altogether ousting of them.

The Mises.org article doesn’t say that IP doesn’t increase wealth, exactly. It says that IP doesn’t demonstrably increase general wealth, meaning it is illogical to argue for patents from a utilitarian standpoint. IP can absolutely increase specific wealth, that of the person who is the legal “owner” of the IP. Their point is that the only studies available tend to show that there is a net loss in the system as a whole when one individual or group gets to control the implementation of a single idea–i.e., no increase in general wealth. Sure, that individual or group can make more money, but that doesn’t automatically mean it’s justified. Why EXACTLY should a company that knows how to improve on an idea and turn it into a better product be required to get my permission to do so?

I agree that what Lodsys is doing is indefensible on more than one level. But who makes the call on whether patents are philosophical or pragmatic? There is often a conflict of interest among the people who know what they are talking about, and usually a lack of comprehension among every one else (how else would Lodsys have been granted patents for things that are so obvious?).

From the article, a clarification on wealth and ownership:

“While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.

Using your labor and creativity to transform your property into more valuable finished products gives you greater wealth, but not additional property rights. (If you transform someone else’s property, he owns the resulting transformed thing, even if it is now more valuable.) So the idea that you own anything you create is a confused one that does not justify IP.”

But free-market economics doesn’t necessitate the increase of general wealth, does it? And sure, someone can take my writing (I know that’s copyright, but still IP) and make it better, but should they have the right to? I don’t think so. Would you disagree?

Free-market economics definitely doesn’t necessitate the increase of general wealth, no. The article was just addressing that argument as one of the approaches typically used to defend the patent system, and pointing out that it doesn’t even make sense even if increased general wealth is one of your goals.

Copyright falls under the IP category as well, yes, and that’s something I’m still thinking about. The majority of the article is on patents, since the author is a patent lawyer, while copyrights are just sort of lumped in together as being part of the same system. There is a difference to be sure, since patents deal with physical products while copyrights deal with information. I believe there is an aspect of fraud that enters the situation if I were to copy something you wrote while claiming that I wrote it. But if I copy something you wrote and add to it while differentiating between who wrote what, or if I simply redistribute something you wrote and still attribute it all to you, then fraud is not present. This idea allows for infinitely reproducible content to be valued by the market instead of the producer.

This approach is enormously disruptive to the current system of copyright, publishing, and distribution. …which is why I’m still processing it to think about exactly what I would be comfortable with and ready to defend as a producer. I’m inclined to say that I would disagree with your own answer to your question though.

Well, we have the concept of Creative Commons, which is contrary to the article’s statements that it’s impossible to get out of a copyright. Most self-publishing sites allow for this. However, if I wanted to make money off of my writing (and not simply get attributed anytime it was shared), I should have the right to, should I not? The idea of someone just passing on my words (even when attributed) is rather socialist in nature. Taking excerpts to expound, etc. makes sense, but sharing the whole body is contrary to the ideas of liberty, unless you acknowledge that everyone owns all ideas. Now, I can concede that the overly statist ideas and abuses by the RIAA and MPAA are ridiculous, but as a content creator, I reject the premise that people should have access to it without paying at all. A musician puts a lot of time and effort into recording his music and putting out an album. For someone to say that it falls under general domain because they don’t view copyrights as a protectionary guideline is wrong and selfish. However, for the RIAA to sue someone who downloaded 20 songs for $2 million is just about as absurd. So what I’m saying is that there must be a balance.

The article doesn’t state that it’s impossible to get out of copyright, but rather that it is received automatically and hard to get rid of. The article linked from that footnote is here (also an interesting read):

Creative Commons is not copyright-free; it is actually using the copyright system to grant a specific license to everyone that, while it is far more permissive than typical automatic copyright, is not truly free of the system. The linked article discusses the difficulties and uncertainties in trying to place anything truly into the public domain with zero restrictions, due to the way copyright works here and now.

I am always hesitant to say that anyone has the “right” to make money. You certainly have the right to attempt it using legal means, but whether you succeed is not guaranteed. You probably meant it that way, but I’m just trying to avoid potentially dangerous terminology. I agree also with the Biblical principle that a workman is worthy of his wages, that if you do something for someone else in an agreement that you will be paid a certain amount, and you deliver the work, then you should be paid for it as promised.

I think you and I (and most people) would agree on the ownership of physical property, since it’s a scarce resource. If you own it, and I take it without your permission, I’m wrong. Only one person can have any given thing. (Fun thought experiment: what happens if/when somebody invents a working Star-Trek-esque matter-transforming replicator?)

However, ideas and knowledge are infinite by nature. If I tell you something I know, then we both know it. This is true of a math formula, a scientific discovery, a DNA pattern, a story I made up, or a song I wrote. My ideas and knowledge are not lessened personally by sharing them with you. So the question then becomes this: at what point, if any, does an idea or knowledge become an “ownable” thing? It’s a huge gray area unless your stance is either “always” or “never.”

If you and I sit down at Starbucks, and I tell you a fairly involved and clever joke, I think most people would say it is ridiculous for me to then demand payment for hearing it, or to assert that you have no right to repeat it. If it’s part of my upcoming comedy tour, then you might altruistically not tell anyone because you and I are friends and you want my efforts to succeed. But that’s a courtesy you give, not a right that I demand.

Then there is the matter of costs of reproduction which most people also agree on, namely, that if you want a copy of a physical book which I wrote, then you cannot rightly ever demand that physical book for free because of the costs of materials and machinery used to make it. It is a scarce resource, and can only be owned by one person. Whatever tangible value is placed on the actual written contents of the book, at least the physical materials alone warrant some payment.

Back to the main question though: when does a single idea or set of ideas transform into something which you have the right to demand that nobody reproduce or redistribute? It’s either always, never, or somewhere in the middle. But it has to be concrete, defensible, and easily understood if the system is supposed to work.

I play one of my songs at a coffee shop. Someone hears it, likes it, has the resources to record it, and the backing to sell it, while I don’t. Don’t I get screwed in the process? How am I protected from that, if not from some sort of copyright process? I agree that knowledge is infinite in nature, but at the same time, I don’t think your (and the article’s) views on IP being as black and white can succinctly address that issue. I would love to hear a solution, but all I’ve read so far is that granting IP protection is wrong. Okay, I can see why you think it’s wrong, but you haven’t provided a solution. Say you do tell me that joke, and I claim that as my own at the comedy club I’m playing tonight, our friendship may be over, but what you were hoping for, in terms of getting stuff out of a potential tour, is forever lost. You could argue that your delivery may be better than mine, but I may just have screwed your chances at getting a record deal from some label.

This is where the argument breaks down for me. If there is a solution, I’d love to hear, and consider it. If not, it’s simply ideological positioning, and that doesn’t really solve much.

If you play your song at a coffee shop, and someone else hears it, likes it, records it, and sells it, then whether or not that is “screwing” you depends subjectively on what you wanted to accomplish, and objectively on whether you “own” that specific arrangement of notes and words (the core of the debate).

What has demonstrably happened in this situation is that, at absolutely no further cost to you, something you created has been spread among potentially millions of people who were interested enough to want to hear it. That much is definitely true. To some songwriters, this very thing would be a dream come true, because it is a potential source of a huge audience. They are, after all, still the original source of the talent.

What may have also happened is that you lost an opportunity to capitalize on recording and selling that song yourself (though whether it was really an opportunity is debatable, since in your hypothetical description you already said you don’t have the means). But this is not even necessarily the case; different artists record the same song all the time, even in very similar styles, and typically doing so only adds to the perceived value among different groups of fans. Take One Republic’s “Apologize” vs. Timbaland’s version, both of which did well in different arenas.

In the case of the joke example, it is possible that if you blab, I might lose some or all of what I hoped to gain by that comedy tour. I do not believe that it’s the government’s business to punish you for my naivete in sharing that content with someone who would then go repeat it. Now, if I have you sign an NDA before I tell you the joke, that’s a different matter entirely.

As for claiming credit for something you didn’t create, I think legal fraud may come into play, but there I’m not sure. People who fraudulently rise to fame are not often able to maintain the illusion for long. As to whether claiming credit for something you didn’t do is actually the government’s business, I’d much rather keep them out of it as much as possible. If you claim to be the legal originator of something and it can be demonstrated conclusively that you aren’t, then there goes your reputation, and it’s a breach of contract with any contracts you have claimed that on as well, and perjury if you say so in court. Outside of a contract or court where false claims are made and executed, only reputation is at stake–which, in just about any vocation, is critical to long-term success. Reputation (a.k.a. market forces) is certainly the strongest regulatory/preventive influence in an IP-free system.

The main question still comes down to what, if anything, turns some particular bit of knowledge into something that can be owned and legally protected against “theft” (duplication, really) like physical property.

If ALL knowledge is inherently ownable in this way, then every instance of communication creates the possibility of legal action–a terrible idea. There would be an NDA app on everybody’s phone, and friendships would include pre-nup-style contracts.

If NO knowledge is ownable in this way, then there are quite a few content-centered business models that would need to adjust radically (or disappear entirely), but the legal system would also lose an enormous chunk of complexity, and Lodsys et. al. would vaporize into nothingness. Although my position is in flux, this second option (and the paragraph about fraud/reputation) is currently my idea of a solution. I gather you don’t like it though. :-p

If the answer really does lie somewhere between the two, then it can’t afford to be subjective on a case-by-case basis depending on who has more money for clever lawyers. That’s how you get the system we have now. If it isn’t clear and simple, then those who stand to benefit most financially from a draconian IP system will constantly vie for more power and privilege. How would you define the line between “protectable knowledge” vs. “unprotectable knowledge”?

What you’re suggesting would destroy creativity altogether. What is my incentive to create if what I create is not protected? I would still argue that this is far more socialist, even communistic in nature than libertarian. Unless, of course, you subscribe to the anarchistic school of thought in libertarianism. And I find that a very tough ideology to argue.

I don’t think the fraud/reputation model is enough to sustain the fields of creativity. When people are told ‘he stole this idea from so-and-so’, the general consensus is ‘so what?’ I’ve never really heard real concern about this. Just consider the downloading of mp3’s for example. How many people have said this is morally reprehensible? Almost no one except the artists. People were pissed about Metallica’s stance against Napster, but they didn’t consider for a moment that the band made money through their music. And no amount of reputation rhetoric would overturn the damage they suffer by the leaking of their music.

Of course, this is a very simplistic approach and one that avoids talking about the other players in the system, but it’s still valid, considering the fact that someone was a party to theft. I don’t think you’ve established your case enough to say that it wasn’t theft. What you’re referring to (covers and all) go through legal channels. BMI and ASCAP actually make sure that the artist that wrote the original song gets monetary compensation for its use in covers, movies, tv shows and the sort. Now, if you were to recommend a free-market system to replace governmental regulation, I’d be all for it, but what real authority would such a system have?

As for differentiating between protectable and unprotectable knowledge, I would say that a statute of limitations, as is in place, is the best way to distinguish those. Instead of 70 years, as with copyright, the patent approach to 7 years (unless I’m misunderstanding) is a good timeframe. If within 7 years, you haven’t quite capitalized on your work, I don’t think that’s going to suddenly change. Unless, of course, you die, and in that case, you won’t be using the money anyway. What that does, is give you a window to promote your work, make your money, and capitalize on those who would like to build upon what you have. Of course, this would only matter in truly creative fields of arts and literature, as well as technology and education. Humor, for example, serves no real purpose in advancing civilization, and so would not be covered. I’m sure the argument could be made about some of the literature that’s published too, but good or bad, I think it advances the civilization in one of two ways: propelling it by providing a framework to build on, or highlighting what must be avoided at all costs. I’d say that’s my thought on those.

Your claim that such a system would destroy creativity because removing IP also removes the incentive to create is very common, but illogical for a couple of reasons. First, there was no official blanket copyright law anywhere until 1709 in Britain, though there were some similar monopoly-style privileges granted in certain cases and limited geographical spheres as early as 1486. Surely, a great many literary works were written before then; these writers didn’t write books, poems, songs, etc. because of copyright, so creativity can certainly survive without copyright.

Patents as well only began in something like their current form in Italy in 1474, though some similar privileges were granted individually by the King of England as early as 1331 (even these early English “letters of patent” were abused by both the government and inventors though). There was even a documented reference to 1-year patent-like awards to winners of a particular culinary competition in a Greek city ca. 500 BC, though these were short, local, and very narrow. Widespread patent enforcement has only been around for a little over 500 years, and it has taken that long to develop into the system we have today. But new inventions surely didn’t spontaneously begin 500 years ago. Pre-patent-era inventions are a demonstration of creativity surviving despite having no patent protection.

I would also argue, as an aside, that the industrial revolution in the 18th and 19th centuries didn’t occur because of patents, but rather despite them. Rapid advancement of technological development is far, far easier to effect when people are not artificially banned from innovating for some period of time.

Now, I admit that some people make new designs or creative works purely because they want to make money. (I would bet that these people, of all creators, are the least successful overall though, since passion for the work typically translates into quality much more than passion for money.) But there are many, many people who are creative either partially or entirely for reasons outside of financial gain. People write books, record songs, and make movies to express what is inside them, or to effect social change, or to make others laugh. People invent things to solve problems, to make life easier for themselves or others, to provide better, faster ways to do what they want to do. Often there is a simultaneous hope for financial gain, and there’s nothing wrong with this. There’s also nothing that says it is impossible to achieve without IP protection from the government.

As counterexamples to your initial claim, I present myself, my wife, the entire open-source software community, and the entire open-source hardware community. I like to write code that I and others can use to solve problems. I like to give a lot of it away for free, and so I do. Also, I’m building the Keyglove because I really love the process and am excited for the end result. I hope to make money off of it, but I don’t believe IP is required to accomplish this, which is why so much of the current design and development process is right up there on the project website. Regardless, I am sure that even if I knew I was the only one to use it, I would still build it for multiple non-financial reasons.

My wife loves to sing, and so she records songs. She happily posts these on her website with no current intention of trying to sell them. She enjoys the experience of singing, the challenges, and the outcome, all outside of financial gain.

Open-source hardware (rapidly growing) and software (already huge) are two sources of vast creativity that have not just begun and grown without the need for IP, but in many cases also explicitly rejected IP protection for ideological reasons. These are people who create things that they want to for their own purposes, and subsequently give it away. (Yes, some open-source stuff is low quality, but certainly not all of it–that is to say, open-source doesn’t guarantee low quality any more than closed-source/IP guarantees high quality.)

So, it is definitely not true that removing IP would destroy creativity.

In the case of musicians, I think it is also worth pointing out that it is generally far more lucrative for a band to focus and capitalize on concerts, merchandise, and uniquely engaging with their fans than it is to try to sell more copies of albums. There are many disappointing reports of exactly how little any given artist or band usually sees from album sales, and there are many interesting reports of how well bands do when they connect with their fans in innovative ways (private concerts, personal responses through social media, contests, encouraging remixes, etc.). Economically, this makes sense. With digital distribution, once a song or album has been recorded, it requires virtually no extra costs to share with anyone who wants to hear it, and many people realize this. It can, from a techincal standpoint, be duplicated almost infinitely with only relatively tiny costs for bandwidth (which is usually at least shared, if not entirely paid for, by the consumer).

Many musicians are now wholeheartedly encouraging this behavior (what is typically labeled “piracy”) because it translates into widespread zero-cost exposure, simultaneously increasing interest among new and existing fans who will then willingly pay money for the unique (scarce) aspects of the music like concerts and merchandise. With the advent and falling cost of digital distribution, there is no economic reason for the RIAA to exist. They don’t even need to be “copyright cops,” since if copyright is truly legitimate, individual artists can stand on their own with just as much real legal clout as anyone else.

As for the political lean of this idea, if knowledge is inherently not ownable, then I don’t see how an IP-free system is either socialist or communist. I also don’t see how which particular “flavor” of libertarianism I subscribe to has any impact on whether a specific idea is more socialist or communist. Now, if knowledge IS ownable, then it would indeed be communistic to say that it belongs to everyone. But that question (ownable vs. not) is the whole point of this debate, right? If it is ownable, then my approach falls apart. If it isn’t, then I think my approach is the end result of accepting that answer.

As to whether reputation is a significant enough market force to deal with fraud, it is difficult to argue outside of hypotheticals because of the system we already have in place, and have had for the entire duration of the country’s existence. If someone claims an idea as their own, they are expected to use the patent and/or copyright system we have to prove it, and if they can’t, then they’re out of luck. Reality is effectively trumped by legal filings, and even if you can eventually prove that you’re right, it usually takes a huge amount of time and money to do so. If there were no IP controls in place, reputation would become a lot more valuable because merely having the smartest lawyers would become worthless.

I would say at least, as I stated above, that absolutely nothing is required to “sustain the fields of creativity.” That’s going to happen no matter what. Incidentally, I think that would STILL happen even if we did have Star-Trek-esque replicators, because creativity is driven by things other than financial gain, and the ability to create is not hampered by the ability to duplicate.

There is certainly a lot of apathy and pragmatism from consumers when it comes to the source of what they consume. If it’s what they want and it’s the right price, they’ll buy it. But “what they want” extends beyond just physical aspects and immediate utility. There is value placed on intangible things like how long something is expected to last before breaking, what the manufacturer’s customer service is like, and even less pragmatic and more emotional things like the work environment at the place where the thing is made. Each of these factors has a different weight in any given consumer’s decision, and sometimes price wins out–but not always. Whether someone destroyed other businesses in the process of emerging into the market will, if it known, be one of these factors people consider. A reputation as a fraud might not have enough impact to prevent a sale, but it might.

If someone is told, as in your example, that “he stole this idea from so-and-so,” and the general consensus is truly nothing more than “so what?”, then there are some things we might learn from that response. First and foremost, I think that response implies something else: “Well, THIS guy actually implemented the idea, which is why I’m looking at (or holding, or reading, or listening to) the end result right now. How is this a bad thing?” Very pragmatic to be sure, but that particular response fits with an IP-free system. If two people have an idea, and one of them implements it, then where is the problem? Is it a problem because one of them implements it before the other one, rather than doing it together? Or because the one who implemented it first didn’t think of it independently?

People automatically respond differently to “he stole my car!” than they do to “he stole my idea!”, despite the continued and long-winded efforts of the IP industry to convince us that they are exactly the same thing. Theft is when I take something that you own, which is particularly evident and provable precisely because you don’t have it anymore. “Stealing” an idea, whatever else it may be, is certainly not exactly the same thing, and at least some of the apathy present in the “so what?” response is because people understand this implicitly, if not explicitly.

An additional response possibly implied by “so what?” is this: “so why aren’t you competing?” In an IP-free system, nobody could be legally prevented from competing with any existing product. Of course, it may not be feasible for multiple reasons for some people who would otherwise enter the market, either as an originator or a competitor. Does that automatically mean that nobody else should be allowed to, because the guy who originally came up with the idea doesn’t have the means to implement it? I think not. That isn’t a free-market system at all.

As for MP3 downloads, I would disagree that it’s mainly the artists who say that downloading MP3s is morally reprehensible (though some of them do for sure, most famously Metallica, and Prince as well). I would say that beyond a shadow of a doubt it is mainly the people who profit most from copyright licensing–the RIAA and similar groups in the US and elsewhere. As mentioned before, the artists usually don’t stand to lose much from piracy due to (1) the pittance they get from album sales and (2) the free exposure it gives them. The Recording Industry often uses bands as part of anti-piracy campaigns to lend some credibility to their message, but I think it is comparatively rare for the bands themselves to be gung-ho about the idea.

Metallica, as a high-profile old-school band firmly entrenched in pre-internet business models, is probably one of the exceptions in terms of how much they make from album sales. From my casual reading of various blog posts, comments, and articles over the past few years, I’d say that the community has still not completely forgiven them for being the frontrunner band against Napster, though their friendly acceptance of Beatallica mash-ups won them some points. I would argue that Metallica lost far more from the attack on Napster (and subsequent disinterest or pointed rejection by fans) than they did in terms of sales lost due to piracy. Reports continue to suggest that the biggest music pirates are also the biggest music purchasers. If you make your hardcore fans (those most likely to look for your music on Napster) decide to hate you instead, they will certainly stop buying your stuff and going to your concerts. As a high-profile band, Metallica stands (or stood) to profit more than most from concerts and merchendise, but they lost a lot of that potential by turning fans into opponents.

As for licensing groups, the function of BMI, ASCAP, and other similar groups is not something that necessarily needs continue. They exist to make sure that certain ideas cannot be “stolen,” but instead that they are always “bought” according to copyright laws. Their existence presupposes the ability of ideas to be owned, which again is the core of the debate. If ideas cannot be owned, then licensing groups have no function. You mention a free-market system to replace government regulation, but that doesn’t really make sense. A system is a free market precisely because there is no government regulation. A free-market replacement wouldn’t have any authority, true, because a free-market replacement for government regulation is exactly nothing. That’s the point.

Your ideas for where to draw the line between protectable and unprotectable knowledge are interesting, but they strike me as very subjective and arbitrary. A statute of limitations would at least be relatively simple to enforce, but does it apply universally? Do you have to claim it, or is it automatically given for any and every thing you create? When does it begin relative to when you claim it, either for works that are already created or for ones you plan to create? How do you identify the “beginning” of an idea? If you have to claim protection, is there a specific window of time when you can do that? Can you transfer this exclusive protection, or share it? Can you revoke it if it’s automatically given? You probably could come up with answers to these without much difficulty, but could you defend those answers well? The reasoning depends on a lot of different factors.

Patents in the US typically last for 20 years, as do European patents. There are a few exceptions (decorative design patents last 14 years, for example), but 20 is the most common. Granted, a 7-year ban on competition and innovation is less harmful than a 20-year ban, but why have one at all? And, on the other side of the argument, what if you’re developing a drug that takes 15 years to study thoroughly? How many other industries would require exceptions to the rule to make everything “fair”? One exception paves the way for a multitude of them, granted to politically motivated and/or wealthy special interest groups. Having no exceptions means that either some industries will be at a disadvantage due to long development times, or everyone will be forced to endure unreasonably long terms to accomodate those few extremes (which we might discover decades later are still not long enough to accomodate some new industry). Having no IP avoids this problem entirely.

The government should not be allowed (or required) to selectively subsidize creators to help them make money. That’s not the government’s job at all. But, even if that were the case, and assuming I agree with you that only truly creative fields should be given special treatment, who gets to make the call for what is “truly creative”? Who gets to say whether something “advances civilization” or not? How much humor can my technical document have in it before it is no longer covered? How much technical information do I have to put in my joke book before it qualifies? This approach leaves things wide open for reinterpretation.

An IP-free system remains as the only approach I can currently defend in good conscience all the way down to the foundation.

Sure, before the eighteenth century there was no copyright, but you have to look at the structure of those communities too. How far do you think a person would get by stealing someone else’s IP? A village over? Reputation was a far greater market-force in those days than it is today. I still disagree with the premise that true creativity doesn’t attach to itself the notion of being compensated. Ask any artist, and they’ll tell you that they would create even if they didn’t make money off of it, but we do need to get paid to pay our bills and the sort. So there is always this innate desire that the products of our creativity will somehow bring us an income. You can’t objectively say what the creative community would or would not do when you’re not a part of it. While building on something is great, I still think that some sort of protection is great to ensure you won’t get screwed over. It may not put an end to creativity, but it does make an artist paranoid about showing off his work.

As far as open platforms go, for all the benefits you list, I have yet to see Linux actually perform well. Sure, Ubuntu is great, but it’s so far lacking in support that you can’t truly work on it without investing far too much time in upkeep. If the free-market actually moves towards IP-protected systems such as Macs and PC’s, I think the open platform argument crumbles pretty quickly. If Linux was far outperforming those two, I’d concede to your arguments, but it isn’t, and so I don’t necessarily see a huge benefit to it. Same goes for Gimp, OpenOffice, and everything else that’s open-sourced. They’re just terrible, and don’t even come close to having the versatility that various closed platforms do. So, why would we want to move away from that?

Reputation is far less valuable today only, I believe, because of the government regulations that shield people from true free-market reprisal. The IP system provides a layer of red tape and huge delays for establishing proof of originality such that reputation is off-loaded onto the legal system instead of evaluated individually. I still maintain that in an IP-free environment, reputation would shoot right back up where it used to be in terms of intangible value. I admit that this is speculation though.

I would even say that reputation could be vastly more powerful today, precisely because information transfer is nearly instant. If you are proven to be a fraud somewhere, then suddenly the entire planet can be alerted within minutes (hooray for Twitter, no?).

I’m not sure how to reconcile two of your statements. First, “I still disagree with the premise that true creativity doesn’t attach to itself the notion of being compensated.” And second, “Ask any artist, and they’ll tell you that they would create even if they didn’t make money off of it…” Those things seem to contradict each other. Of course everyone needs to pay their bills, and it is perfectly legitimate for anyone to market their creative works in whatever way they wish to attempt it. But I maintain that not everyone feels that the act of creation entitles them to compensation from those who use what they created. I know I don’t, and as a programmer and the guy working on the Keyglove, I do think that puts me squarely inside the creative community. I do intend to market the Keyglove, and I hope to make money from it. But I don’t feel entitled to that money.

For open-source hardware and software, you specifically target Linux as one data point that makes you reject my argument. I’m not sure why Linux would have to “far outperform” Windows and OS X in order for you to take open-source software as a serious source of IP-free creativity.

First, a free-market IP-free system does not mean that software developers must by definition give away their source code (or hardware designers give their designs away). It’s perfectly acceptable to do whatever is in your power as a developer/company to make your product difficult to copy. You can also make it easy to copy (or purposely free) and then provide high-quality paid support, which is what Canonical does with Ubuntu. The people who value support can use a free OS and pay for the support they need, and the people who don’t value support can use a free OS and figure it out themselves.

Closed-source does not demand government IP protection. Closed source software is basically just an application of trade secrets, which are perfectly legitimate in an IP-free system. The difference is in what can be done if those trade secrets leak–namely, nothing, instead of government intervention. (Interestingly, if trade secrets are leaked in our current system, they become legally public; there is no government protection. This would be the same consequence of any leak in an IP-free system.)

Second, what does it mean for Linux to “far outperform” other OSes? Linux is at least a huge contender, if not a majority option, in the server market. It absolutely dominates the supercomputer market. It certainly isn’t dominating the desktop/laptop/netbook market, but that doesn’t indicate failure by any means. Whether Linux is a good product for you depends on what you are looking for in an operating system.

Third, my point was not about any particular open project, but only that lots of people create lots of stuff not only without the specific goal of making money, but also with the explicit goal of giving it away. Maybe you don’t personally see a lot of value in the products in question, but a lot of people do. GIMP is no Photoshop, but it’s under constant (open, shared, free) development, and nothing says it can’t become just as friendly as Photoshop. Ubuntu keeps getting more and more polished and intuitive. And really, anything that’s open-sourced is terrible? That’s pretty broad. Open-source software is everywhere (including, according to Apple, “major components of Mac OS X”). Surely there are some things on this list of open-source hardware that you would find truly valuable as well:

Hardware is typically much easier than software to protect practically if you are looking to make money on a design. Yet even these projects, only a few higher-profile ones among many not listed, are being developed specifically so those designs can be given away.

There are definitely some people who create without the belief that they are entitled to compensation from others who use it simply because they created it.

Interesting. I need to do more reading on the types of IP protection. I guess what I was aligning my views with would be more along the lines of trade secrets than patents, per se. I imagined them to be the same, but I guess that’s not the case. I still don’t see myself conceding on copyrights, but I can see how patents could be a messy system if all they’re doing is what Lodsys does. When I look at Apple’s patents, for example, I feel like they’re constantly incorporating them into their products, which is why it makes sense to give them protection. Going back to the original post, however, I think Google’s just a hypocrite though. For them to whine about patents when they lost the bid is just ludicrous. And that’s why I’m glad Microsoft called them out on it :p

He was definitely a willing and courteous debate partner, and I’m pleased by the conversation even though we still don’t agree on everything. It provided us both with a lot to think about. He may come to agree with me more, or I may come to agree with him more; time will tell.

Update August 9, 2011: This just got personal.

I wrote this mainly from an ideological standpoint, though some of my recent actions such as sharing open source software and keeping the Keyglove project very open have been influenced by these same opinions. But by an amazing coincidence, I got an email the day after publishing this post from someone asserting that the Keyglove is infringing their patent, and requesting that I cease all efforts to commercialize the Keyglove and threatening litigation for non-compliance.

The request is entirely serious and, I believe, in no way related to the fact that I posted this the day before he decided to contact me. In fairness, his request was written in as friendly and cordial a manner as possible, given what he was saying. I guess I’m not extremely surprised this happened. In a way, it’s almost encouraging, since it means I’m doing something well enough to be a perceived competitor to another company. Our discussion is only beginning, and the outcome is not guaranteed. I am intentionally avoiding details for this reason. Stay tuned.

I would like to point out that, although I assume he doesn’t see it this way, what he has said from my point of view is this: “I spent a lot of time and money bringing my idea to market. I don’t like the competitive threat you pose, so I’m going to use a government-granted monopoly privilege to shut you down because I want more subsidized opportunity to make money.” (Extra clarification: he did not actually say this. This is my interpretation of what it means to threaten someone with patent litigation. He was much more diplomatic.)

If he’s like many people who believe in the IP system (which he may not be, I’m not sure), then he likely believes that he deserves this “bonus time” to recoup his invested time and money by artificial advantage without fear of market competition. Our society has been conditioned to believe this by hundreds of years of intellectual property law enforcement. The patent system grants him this privilege. I think this is entirely wrong. Of course, what I think and what the law says are currently two very different things, and my opinion doesn’t change what I am required to do (or not do).

I also want to reiterate that everything this person has done so far is entirely within the law as well as tastefully communicated. My comments here are my own interpretation of a personal experience in light of the article written above. I just think it’s interesting that this would happen the day after I originally published this post.

A Conversational Treatise on the Problems with Intellectual Property was last modified: March 14th, 2017 by Jeff Rowberg

3 comments

First, I own this comment. 🙂
Lastly, I reposted all of your arguments in an article titled, “IP – real-estate or potty talk; you decide,” for Wall Street Journal as my own, they want me to write a book. Thanks for doing all my work.

Let’s say you did what you suggest there, reposting all of my arguments as your own. Depending on what I am interested in achieving, I have a choice. Maybe I don’t want to write a book, or don’t want to become known in the Wall Street Journal, or just don’t want to spend any more time and effort on the whole IP debate. In this case, I could just let it go, and if you actually do a good job with the book, then a lot of people are better off for having been brought into the IP debate by reading your book. You make some money on the deal; good for you. I’m not “screwed” here because I have no interest in doing what you did. (I would argue that by no means did I do all of your work, since you still had the write the book, which is going to be far more difficult than just those original arguments.)

But let’s say I do, and I was hoping to get a similar book deal with the WSJ. Since I know you are clearly taking credit for work that isn’t yours, I would communicate to the Wall Street Journal that you are making a false claim about your authenticity, and present all the evidence I can (timestamps, comments, conversation threads on this article, related conversations on the same topic, backlinks that point to me, etc.) to show that the real knowledge and talent lies with me, not you. Now your book deal is at least in jeopardy as the WSJ investigates, since clearly they wouldn’t want to tarnish their own name by commissioning work from a verifiable fraud, particularly if you were a verifiable fraud before they hired you.

But let’s say the WSJ still sides with you because I failed to convince them. Apart from what I might do to keep trying, now you have your own potential problem: the people who hired you to write will be comparing your work against a baseline of quality that comes from someone else. Will you be able to write the entire book with the same style and diligence that they are expecting to see? (Assuming they thought the original article was diligently written and had good style, anyway.) If you can’t write the kind of book they are expecting to get, then your reputation as a writer will suffer, and the WSJ may argue that you haven’t fulfilled your end of the bargain. Alternatively, if you write your book in the same manner that you “wrote” the original article—by copying other people—then the evidence against your authenticity will simply continue to mount as more and more people claim (rightly) that you are taking credit for work that is not yours. You are unlikely to come out ahead by any measure in this case.

But there is another possibility here: what if you use my work as the leverage you need to get a book deal, and then proceed to write a stellar book with all of your own original content, the WSJ loves it, and it becomes a best-seller. At least part of your reputation (and your payment from WSJ, depending on the deal you signed) still may be in jeopardy if I can convince the WSJ and/or your readership that your rise to fame was launched by a lie. However, you still wrote an excellent book which required a lot of work. Whether you get paid for it depends on the contract you signed, but the bottom line for the sake of this argument is that I should have no expectation of being paid for your work simply because it was based on mine.

After all, what did I do in this particular instance? I wrote an article and posted it (for free). Nobody promised me money for doing that. I didn’t do anything after that to add value. The WSJ didn’t sign a book deal with me (opportunity cost, yes, but demanding payment for something that might have happened is almost as difficult to argue as demanding punishment for crime that might have happened). At least in this case, you did nearly all of the work, and that’s what you got paid for, as you and the WSJ agreed.

So please, use this article to get a book deal with the WSJ. Let’s see what happens. And I’m pretty sure I know which Mike this is, in which case I think a book by you on IP would be a fascinating read, honestly. :-p